In re N.W.-1

1

In re N.W.-1 and N.W.-2

No. 23-655

Supreme Court of Appeals of West Virginia

November 26, 2024

(Marion County CC-24-2022-JA-141 and CC-24-2022-JA-142)

MEMORANDUM DECISION

Petitioner Father N.W.-3^[1] appeals the Circuit Court of Marion County's June 27, 2023, order terminating his parental and custodial rights to N.W.-1 and N.W.-2, arguing that the circuit court erred in failing to impose a less restrictive dispositional alternative.^[2] Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21.

The DHS filed a petition in November 2022, in which it alleged that the petitioner's incarceration following his arrest for murder constituted abandonment and rendered him unable to care for the children. The petitioner later stipulated to the allegation at an adjudicatory hearing in February 2023. Accordingly, the court adjudicated the petitioner of abusing and neglecting the children based upon his abandonment.

The matter came on for a final dispositional hearing in May 2023. The petitioner sought a continuance pending the outcome of his criminal trial scheduled for August 2023. Citing Rule 5^[3] of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the DHS objected to a continuance. The court denied the motion. In support of disposition, the DHS presented a witness who testified that the petitioner was incarcerated for the entirety of the proceedings, had no visits with the children, and received no remedial services as a result of his incarceration. The petitioner requested disposition under West Virginia Code § 49-4-604(c)(5) because the children were in a kinship placement and so that he could seek modification after his criminal trial depending on the outcome. The court denied this request and terminated the petitioner's parental and custodial rights. In support, the court found that there was no reasonable likelihood that the petitioner could remedy the conditions of abuse and neglect in the future. The court additionally found that it was in the children's best interests to terminate the petitioner's rights. Accordingly, the court terminated the petitioner's parental and custodial rights to the children.^[4] The petitioner appealed from the dispositional order. Subsequent to the filing of the petitioner's brief, the respondents provided supplemental updates to this Court in which they indicated that the petitioner was convicted of multiple crimes, including first-degree murder. The DHS indicated that the petitioner "will serve life imprisonment without parole."

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court's findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Before this Court, the petitioner raises a single assignment of error in which he alleges that the circuit court should have granted him disposition under West Virginia Code § 49-4-604(c)(5). However, it is critical to note that the petitioner does not challenge the circuit court's findings upon which termination was based. Namely, that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and that termination of his rights was in the children's best interests. Circuit courts are permitted to terminate parental and custodial rights upon these findings, in accordance with West Virginia Code § 49-4-604(c)(6), and the petitioner's failure to challenge them in any way leaves him entitled to no relief. See Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)) ("Termination of parental rights . . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.").

We must, however, address the circuit court's reliance on the petitioner's incarceration as a basis for termination by noting the following:

When no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity.

In re Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 3. The record here shows that the circuit court failed to undertake this required analysis prior to terminating the petitioner's parental and custodial rights. However, that does not preclude this Court from undertaking its own analysis based upon the parties' updates. See Syl. Pt. 5, In re A.F., 246 W.Va. 49, 866 S.E.2d 114 (2021) (quoting Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965)) ("This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.").

The circumstances of In re A.F. were almost identical to those presently before this Court. There, we found that a circuit court's analysis of the In re Cecil T. factors was lacking, in part, because it was based on evidence of the parent's pre-trial incarceration. In re A.F., 246 W.Va. at 55, 866 S.E.2d at 120. However, despite finding that the circuit court's In re Cecil T. analysis was erroneous, we nonetheless noted that this was "not the end of our inquiry," given that the Court had sufficient information from the parties' updates to conduct its own In re Cecil T. analysis. Id. at 56, 866 S.E.2d at 121. Based on that analysis, the Court ultimately affirmed the termination of parental rights in that matter. Id. at 57, 866 S.E.2d at 122.

Here, the petitioner's argument that he could possibly correct the conditions of abuse and neglect because he believed he could be released from incarceration is entirely without merit, given his subsequent conviction and the reality that he will remain incarcerated for life. As we stated in In re A.F., "the nature of the offense is an important factor that a court must consider when conducting a Cecil T. analysis." Id. at 55, 866 S.E.2d at 120. Given the serious nature of the offense and the length of the petitioner's incarceration, it is clear that application of the required factors supports the termination of the petitioner's parental and custodial rights. Further, termination of the petitioner's rights was clearly in the children's best interests, given that he will not be released from incarceration, the mothers' rights have been terminated, and the children are preparing for adoption. Accordingly, in consideration of all the necessary factors set forth in In re Cecil T., we conclude that the petitioner is entitled to no relief.

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 27, 2023, order is hereby affirmed.

Affirmed.

CONCURRED IN BY: Tim Armstead Chief Justice, Elizabeth D. Walker Justice, C. Haley Bunn Justice.

CONCURRING, IN PART, AND DISSENTING, IN PART: Justice John A. Hutchison

Justice William R Wooton Wooton, Justice, concurring, in part, and dissenting, in part, joined by Justice Hutchison:

I concur with the majority's conclusion: "The record here shows that the circuit court failed to undertake . . . [the In re Cecil T.] required analysis prior to terminating the petitioner's parental and custodial rights." See In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Specifically, in syllabus point three of In re Cecil T., this Court unequivocally held

[w]hen no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity.

228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt.3 (emphasis added).

However, notwithstanding the clear directive in In re Cecil T. that the duty to evaluate the facts of a case rests with the circuit court and not with this Court, the majority goes on to decide the merits of the appeal - affirming the circuit court's termination of the petitioner father N.W.-3's parental rights - based on its own evaluation of factual information never presented below.

As set forth in my separate opinion in In re A.F., 246 W.Va. 49, 866 S.E.2d 114 (2021), another case in which the circuit court had failed to do a proper In re Cecil T. analysis but the majority nonetheless affirmed:

[T]he proper remedy for that error is vacation of the order and remand for adequate fact-finding and analysis by the

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